Report: Officers use of deadly force in shootout justified

State Attorney’s office will not file charges against seven Cape policemen

May 4, 2010

Seven Cape Coral police officers were justified in their use of deadly force in a shootout in December following a home invasion robbery, officials reported.

The State Attorney's Office conducted a review of an investigation into the shooting death of Tyson Richardson, 21, and the non-fatal shootings of Mike Borrell, 27, and Jarrett Mundle, 19, on Dec. 20 outside of the Steak 'n Shake on Pine Island Road East. They were allegedly fleeing from the robbery, along with Patrick Rhodes Nelson, 19. He was not injured during the shootout.

"Based upon the evidence submitted, and the applicable law, I am convinced that the actions of the officers involved in this incident were a legally justifiable use of deadly force, in the defense of themselves and/or other officers," stated State Attorney Stephen Russell of the 20th Judicial Circuit in documents released Tuesday. "Therefore, my office will not be filing any criminal charges in this matter."

The incident was mainly investigated by the Cape Coral Police Department, which provided the State Attorney's Office with its reports and witness statements, according to the documents. The State Attorney's Office then conducted a follow-up investigation. The seven officers declined to provide statements, which is their legal right.

"Obviously, it's welcome news," Cape Coral Police Chief Rob Petrovich said of the findings of the State Attorney's Office. "We had every reason to believe everything was OK, but it's always a responsibility to have a thorough investigation outside of the agency."

Petrovich said the officers will return to work according to their schedules.

"They are no longer restricted to administrative duties," he said.

According to Petrovich, the department has responded to emergency calls as best as possible with seven officers on restricted duty, but the idea is to have a department that is staffed as adequately as possible. He added that the officers' return to their regular duties is welcome.

"Every little bit helps when you already have your work force reduced to the point that it has been," Petrovich said. "When you have less officers, you have less time to do proactive things."

According to the documents, two 911 calls from 703 N.E. 15th Terrace reported that three to four people had entered a home wearing masks. One occupant was struck in the head, and the robbers fired at least one round before leaving the home. Officers responding to the area observed a 2008 Kia Optima fail to stop at a red light to turn right. The officers followed the vehicle.

A traffic stop was conducted in the Steak 'n Shake parking lot with at least 10 officers in marked and unmarked vehicles on scene, the documents state. Nelson, the driver, exited the Kia while Richardson moved from the back of the car into the driver's seat. At the same time, Richardson fired a 40-caliber pistol at least twice out of the Kia.

"Officer Livingston specifically reports seeing Richardson climbing over the seat after the gunshot and point a pistol directly at him," State Attorney's Office Chief Investigator Kevin Smith wrote. "In response, Livingston fires his weapon and states that other officers fire in succession."

Rosas, Livingston and Grey are believed to have fired at the Kia.

Richardson attempted to flee by driving away with Borrell and Mundle still in the car, according to the documents. He attempted to ram two marked cars, but the officers reversed out of the way. Richardson eventually rammed a third vehicle before he exited the Kia with a pistol in hand and pointed in the direction of Mullen and Cielinski.

Rosas, Grey, Mullen, Cielinski, Morgan and Carson are believed to have shot at Richardson at this point.

"Richardson stepped from the vehicle; fell to his knees, then to the ground with his pistol landing nearby," Smith wrote.

According to the documents, the officers fired a total of 62 rounds. An autopsy later revealed Richardson had three perforated gunshot wounds, nine penetrating gunshot wounds and two grazing wounds," among other injuries. It is believed that Richardson fired at least two rounds and may have had only four rounds of ammunition.

Officers recovered a 22-caliber revolver and 9 mm pistol from the Kia. The documents state that each were loaded and appeared not to have been fired.

Smith noted that the absence of forensic ballistics evidence, which may have assisted in clarifying which shots were fired by which officer, caused a delay in the review of the case. There was also a delay caused by the unavailability of formal statements or interviews with the seven officers who fired shots.

"In this case, however, based on the available evidence and witness statements, including statements of the surviving suspects, we are still able to establish at this point that the shots fired by all the officers were in response to the direct threat to themselves and their fellow officers," he wrote.

Borrell of 3463 C St., Apt. 815, Fort Myers, and Mundle of 2729 Colonial Blvd., Apt. 206, Fort Myers, each recieved one non-life threatening gunshot wound during the shootout, according to the documents. Both are charged with felony murder in Richardson's death, along with home invasion robbery and aggravated battery in relation to the home invasion incident.

Nelson, of 2160 Clubhouse Road, North Fort Myers, faces the same charges.

A fourth man was later charged with felony murder after police found that he was actively involved with the planning and execution of the home invasion that led to Richardson's death.

Christopher Maurice Williams, 22, of 5247 Red Cedar Drive, Fort Myers, is also was charged with aggravated battery, attempted home invasion and burglary.